Re Tame James Norton

[2005] QMHC 36

MENTAL HEALTH COURT

CITATION: 

Re Tame James Norton [2005] QMHC 036

PARTIES:

REFERENCE BY THE DEFENDANT'S
LEGAL REPRESENTATIVE IN RESPECT
OF TAME JAMES NORTON

PROCEEDING NO:

0114 of 2004

DELIVERED ON:

31 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

1.   The defendant was not of unsound mind as described in the Mental Health Act 2000 (Qld), schedule 2 at the time of the alleged offences.

2.   The defendant is fit for trial.

3.   The proceedings for the alleged offences are to be continued according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with stalking - where psychiatric opinion differs as to whether the defendant had Asperger’s Syndrome - whether the defendant, at the time of the alleged offence, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not do the act pursuant to the Criminal Code, s 27 - whether the defendant was fit for trial as defined in Mental Health Act 2000 (Qld), schedule 2

Criminal Code (Qld), s 27

Mental Health Act 2000 (Qld), schedule 2

COUNSEL:

Ms S Ryan for the defendant
Mr J Tate for the Director of Mental Health

Mr P Rutledge for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. HOLMES J: The defendant Mr Norton is charged with two counts of unlawful stalking, one between 13 February 2001 and 21 August 2001, and the other between 5 May 2001 and 21 August 2001.  There were said to have been some hundreds of telephone calls made to two complainants.

1. The defendant has been seen by two psychiatrists, Professor Nurcombe and Dr Maguire. Both have diagnosed him as suffering from Asperger's Syndrome.  Professor Nurcombe did not think that at the time of the alleged offences he had been deprived of any relevant capacity so as to warrant a finding of unsoundness.  Dr Maguire did not give any clear opinion.

1. Both Professor Nurcombe and Dr Maguire were primarily concerned with the question of fitness for trial. The expression "fit for trial" is defined in the schedule to the Mental Health Act as meaning "fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely". There are tests set out in R v. Presser (1958) VR 45, approved by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 243 and, in relation to this legislation, by the Court of Appeal in R v M [2002] QCA 464. It is not necessary to dwell on the Presser tests.  They are well known.

1. Returning to the defendant's position, it seems he was originally sent to see Dr Maguire because of behaviour described in a letter, which has been provided to the Court, from his solicitor, Mr Affleck.  During a conference with counsel, some weeks before the stalking charges were listed for trial, without any warning, the defendant became upset.  He suddenly stood up and left the room.  He did not return to the conference. 

1. On his referral, then, to Dr Maguire, he was examined.  That was in July 2004.  Subsequently Professor Nurcombe examined him in September 2004.  The presentation to each of the psychiatrists seems to have been consistent.  Each describes his behaviour and his language as childlike.  There are descriptions of him crying and putting his head on his mother's shoulder.  Overall, I think one could fairly say that the behaviour and speech was that of a child under the age of 10, at any rate.

1. Dr Maguire identified these concerns when she gave evidence today in relation to fitness for trial.  She thought that giving evidence might make the defendant’s condition worse in the short term so as to produce some aggression, perhaps requiring hospitalisation.  His tendency, as she put it, to catastrophise might lead to some violent acting out during the trial.  Otherwise she considered, however, that he had the intellectual capacity to comprehend what was involved in the trial.  Her view was that although the case was a marginal one, it fell on the unfitness side of that margin.

1. Dr Nurcombe had originally given an opinion, on the basis of his examination of the defendant, indicating that the defendant was unfit for trial. However, having reviewed a transcript of the defendant’s police record of interview, he revised that view.  He thought it likely that the presentation to him was due to a combination of regressing behaviour and what he described as "faking bad".  He expressed some difficulty in evidence in determining which of those factors applied and to what extent they applied.  However, although he also described the case as a marginal one, he considered that the defendant was fit for trial.  He said it would require a patient lawyer with a level of trust involved.  Taking instructions would present some difficulty because of the defendant’s concrete thinking. The defendant was intellectually capable of following the evidence, although there might be issues about whether he was emotionally capable.

1. Dr Nurcombe agreed with counsel for the defendant that in his consultation with him there was a considerable degree of preoccupation on the defendant's part with this issue:  it is said that one of the complainants terminated her pregnancy to the defendant and that termination occurred on his mother's birthday.  Dr Nurcombe thought that the phone calls, which were the subject of the stalking charge with respect to that complainant, arose from that concern.  He also regarded the defendant’s distress, as exhibited to him in relation to the stalking charges, as predominantly revolving round the termination issue.  He thought that distress itself might make communication difficult at trial and lead to a failure to cooperate with counsel.

1. Both the psychiatrists agreed that the defendant's presentation to them was not consistent with the behaviour in the police record of interview in 2001.  It is in that context that the question of whether, in fact, he was malingering in his presentations to them, arises. 

1. Dr Maguire did consider the possibility because of what she regarded as an extreme display, a histrionic display, but came to the conclusion that the defendant was not malingering largely because his behaviour, particularly in relation to a doll which he saw in her rooms, was consistent with Asperger's Syndrome.  She also seemed to think that the sheer extravagance of the display was not consistent with somebody with any severe degree of Asperger’s, although she also agreed that the police interview did not suggest a severe level of the disorder.

1. A review of the police interview shows a use of quite sophisticated language and a strong command of what is entailed in answering the questions.  Those answers are extensive and they provide a detailed account of the defendant's version of events.  One of the features of the interview is an attempt at an intervention by a support person to defend him on a specific allegation.  The defendant calmly reassures her and proceeds with his account.  There is no doubt in my mind that his performance in that interview is one of a person with a clear grasp of the charges against him and a capacity to defend himself.  It is also entirely inconsistent with his presentation to both psychiatrists.

1. That interview was in 2001.  The defendant did not see the psychiatrists till 2004.  But nothing was suggested by either of them about the condition of Asperger's itself which would explain any dramatic deterioration in performance.  Rather what they raise is the possibility that he suffers from emotional regression under pressure; that that would account for his behaviour with them, possibly, and that it presents a risk of similar regression at trial.

1. I do not think that the discrepancy between the behaviour at the police interview and the behaviour with the psychiatrist can be accounted for by the fact that the defendant knew one of the police officers interviewing him.  And apart from the interview itself, there are other features of the case which suggest that while the defendant has Asperger's Syndrome, he is not as severely impaired as his presentations to the psychiatrist suggests.

1. Among the various pieces of material is a transcript which sets out a number of telephone messages left for one of the complainants.  It suggests a level of articulateness entirely inconsistent with those presentations.  His solicitor who provided the letter to the Court indicates that the defendant has requested a transfer of his file from the firm which that solicitor had previously been with to his current firm.  That, I think - and Dr Maguire agreed - suggests a level of planning or capacity to think through what is needed not consistent with any presentation to the psychiatrists.

1. The defendant was capable in May 2004 of giving instructions at least sufficient for a plea of guilty on a fraud charge.  As is noted by the two psychiatrists and Dr Wood here, the defendant has, unusually for a person with Asperger's Syndrome, been involved in three relationships, though two plainly were unsuccessful. He was at the time he saw the psychiatrists, at any rate, maintaining a separate establishment with his partner and child.

1. On the whole, I think everything points to the defendant being a high functioning individual within the Asperger's spectrum. The childlike performance with psychiatrists contains strong elements of the deliberate and manipulative, possibly facilitated by the supportive presence of his mother. 

1. Dr Nurcombe's concern about the possibility of regression seemed very largely based on the premise that the association of the termination of pregnancy with the stalking charges produced such distress that the defendant might not be able to cope at his trial.  And as I have said, he was also under the impression from what the defendant had told him that it was the distress in relation to that abortion that had underlain the telephone calls that were the subject of the stalking charge in relation to that complainant.

1. I do not accept either of those propositions as established.  What is known of the telephone conversations does not suggest that the termination was their focus.  The complainant in her statement describes them as alternating between demands to resume the relationship and threats to rape and kill her.  The messages, which are, admittedly, a limited sample, before the Court contain no reference to the termination of pregnancy.  When the police interviewed the defendant his concerns about the abortion seemed to turn on his irritation at the complainant's complaints to him of having been made pregnant and requiring the abortion.  There does not appear from the interview to have been any traumatic reaction to the abortion itself.

1. Here in Court the defendant did react with audible sobbing when Professor Nurcombe referred to the issue.  I am afraid that suggests to me no more than that he was in fact able to pay careful attention to the evidence and respond in the way he thought appropriate. 

1. As to Dr Maguire's concerns, I am dubious about the likelihood of regression, but on any view, any ill effect will be temporary.  As to the prospect of the defendant's acting out, her view in that respect seems to be based on a very slender foundation: his mother's history of his having behaved violently on two occasions in the past.  On one of those in fact there was a suggestion that drugs were involved.  So it does not seem to me there is a strong risk of this occurring, but if there were any acting out I have no doubt it could be adequately contained. 

1. I am satisfied, particularly having regard to his responses in the police interview, that the defendant is able to understand what it is that he is charged with.  He can plead to the charge and understand the nature of the proceeding.  He will be able to follow the course of the proceedings and understand the effect of the evidence that may be given against him.  Indeed, I think that may well have been demonstrated by the behaviour that I have alluded to in Court today.

1. I see no impediment to the defendant's giving his counsel necessary instructions, and so far as a considerable degree of patience may be needed, there is no reason to suppose he will not get that from his experienced solicitor and extremely experienced counsel who took the trouble to be present during the proceedings today.  I think he is entirely capable of giving his version of the facts.  He is fit to endure his trial and is unlikely to suffer serious adverse consequences from it.  I am supported in those views by both Dr Wood's and Dr Lawrence's opinions. 

1. I am satisfied, therefore, that the defendant was not suffering from any unsoundness of mind within the meaning of the Act at the time of the alleged offences and that he is fit for trial.  The proceedings should continue according to law.